Ross v. State
| Decision Date | 27 March 1899 |
| Citation | 50 S.W. 336 |
| Parties | ROSS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Bandera county; I. L. Martin, Judge.
William S. Ross was convicted of perjury, and he appeals. Reversed.
Geo. Powell, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of three years; and he prosecutes this appeal.
Appellant made a motion to quash the indictment on various grounds, which was overruled by the court. The indictment assigns the perjury on a motion for continuance made in a certain case against the appellant pending in the district court on an indictment charging him with the theft of a head of cattle, the property of Tony Ney. After stating the term of court and the proceedings leading up to the calling of said case for trial, the indictment alleges that appellant made a motion for continuance, properly sworn to, on account of the absence of three witnesses, including W. C. Simpson, in regard to whom the perjury is charged to have been committed. The indictment sets out the application for continuance in full as a part thereof, and then proceeds to allege that said statement, so made by the said William S. Ross, was then and there material to enable the said William S. Ross to obtain a continuance of said case, and then proceeds to traverse certain statements in the motion for continuance, charging that the same were untrue. In our opinion, the state should have singled out the certain allegations in the motion for continuance which it claimed were material, and then have alleged their materiality. As presented, we are left to take each and every part of said motion for continuance as material, or to single out such portions thereof as we believe to be material. Evidently, if we look to the traverse allegations of the indictment, we would be led to the conclusion that the pleader intended to state that the allegation in the motion for continuance, to wit, "that said witness Simpson was not absent from court by the procurement or consent of the defendant," was material; and that the allegation of said motion, "the defendant expects to prove by W. C. Simpson that defendant openly and notoriously claimed the said yearling as his property, and so stated to said witness at the time he took said yearling into possession, and at the time he had said yearling in possession," was material; and the allegation in said motion "that he expects to prove that he took the animal in question openly and in good faith, believing it to be his property, and that he owned an animal running in the same range with the animal in question, resembling the yearling in question," was material,—because, as above stated, he says, in a subsequent portion of the indictment, "that in truth and in fact the said W. C. Simpson had theretofore been excused by the said William Ross from further attendance as a witness in said case, and said witness was absent with the consent of the said William Ross, and, further, the said W. C. Simpson then and there knew no such facts as set up in said application," etc. We hold that the indictment in this case was defective, in not setting out the particular portions of the motion for continuance which were considered material, and on which the assignments of perjury were proposed to be predicated. We would not be understood, however, as indorsing the subsequent portion of the indictment; for it is drawn in a confused shape. It occurs to us that it would have been a very easy matter to have set out the material portions of the motion for continuance, on which it was proposed to assign the...
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Dickerson v. State
... ... It ... was also error for the court to refuse the defendant's ... eighth instruction which properly limited the consideration ... to be given to the testimony given upon the former trial, and ... which had been admitted to show materiality. ( Ross v ... State, 40 Tex. Cr. 349, 50 S.W. 336; Littlefield v ... State, 24 Tex.App. 167. 5 S.W. 650; Maines v ... State, 23 Tex.App. 568; 5 S.W. 123; Washington v ... State, 23 Tex.App. 336, 5 S.W. 119; Davidson v ... State, 22 Tex.App. 372, 3 S.W. 662; State v ... Brown, 111 La ... ...
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Allen v. State
...as to whether he had been charged with seduction. This character of testimony is admissible as affecting credibility. Ross v. State, 40 Tex. Cr. R. 352, 50 S. W. 336; White v. State, 61 Tex. Cr. R. 498, 135 S. W. 562; Bedford v. State, 170 S. W. 727; Warren v. State, 33 Tex. Cr. R. 502, 26 ......
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Maxey v. State
...a review of the action of the trial court in the receipt of the evidence, a bill of exceptions is essential. See Ross v. State, 40 Tex. Cr. R. 352, 50 S. W. 336, and other cases collated in Branch's Ann. Tex. P. C. § 210. The same is true with reference to the complaint of improper argument......
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Starnes v. State
...exceptions will be noted in their inverse order. The charge above set out is to some extent the same as that given in Ross v. State, 40 Tex. Cr. R. 352, 50 S. W. 336, and it must have left the jury without any guide as to how far they might go or as to what issues in the case they might app......